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Bolivia Takes its Case to International Court: Why Now?

Ronald Bruce St John

The perennial Bolivian quest for a sovereign Pacific port took a surprising turn in April 2013 when the Evo Morales administration instituted proceedings before the International Court of Justice at The Hague, calling on it to rule that Chile had an obligation to negotiate an agreement with Bolivia granting it sovereign access to the Pacific Ocean.

In the latest development, in opening arguments in early May Chile called on the Court to rule that it does not have jurisdiction over the territorial dispute with Bolivia that began in the nineteenth century. The Chilean representative argued that the 1904 Treaty of Peace and Friendship settled the border dispute definitively more than a century ago.

Bolivia lost its access to the sea during the War of the Pacific (1879-1883), and since that time, it has pursued a variety of remedies to end its landlocked status. Recently, separate but related issues came together to persuade the Morales government that now was the right time to take its case to the ICJ in what is an audacious and high-risk strategy.

Legally, Bolivian authorities feel they have put together a convincing case in support of their argument that the ICJ has jurisdiction in the dispute. Outlined first in El Libro del Mar (2014), Bolivia clearly and effectively presented its case in the May opening arguments. The outcome of Maritime Dispute (Peru v. Chile) in which Peru had asked the ICJ to delimit Peru’s southern maritime boundary with Chile, using the equidistance method, strengthened Bolivian resolve to bring its case before the Court. In January 2014, the Court issued a judgment largely in favor of Peru, encouraging Bolivia to think it could also be successful before the Court after multiple other initiatives to resolve its dispute with Chile had failed.

Bolivia continues to face the constraints imposed by the 1929 Tacna and Arica Treaty and Additional Protocol that stipulate that neither Chile nor Peru can cede to a third state any of the territories over which they were granted sovereignty in the 1929 treaty without the prior agreement of the other signatory. After the War of the Pacific, Chile occupied the Peruvian provinces of Tacna and Arica until 1929 when Chile and Peru agreed to split them, returning Tacna to Peru and Chile keeping Arica.

Peru’s veto power over any Chilean proposal to cede part of Arica to Bolivia, and Chile’s veto power over any Peruvian attempt to cede part of Tacna, mean that Peru will be involved in any conceivable solution to the Bolivia-Chile dispute. This complication has scuttled prior attempts to negotiate sovereign Bolivian access to the sea, notably the so-called Charaña talks in 1975-1978.

The Economic Implications

Control over economic resources, not just boundaries, lies at the core of the Chile-Peru maritime dispute since the waters off the Pacific coast contain important fisheries and potentially significant hydrocarbon and other seabed resources. If Bolivia were granted a sovereign Pacific port between Chile and Peru, presumably with some level of offshore fishery and seabed rights, it would complicate the Chile-Peru dispute because the maritime boundary drawn by the Court in Maritime Dispute (Peru v. Chile) would have to be redrawn to accommodate Bolivian interests.

Independent studies have suggested that Bolivia’s GDP would have been as much as 20% higher if it had not lost access to the sea. The Bolivian government has estimated its GDP would increase 1% per annum if it had direct access to the Pacific. Although estimates can be questioned, Bolivia clearly is a prisoner of geography and will remain at an economic disadvantage vis-à-vis its neighbors as long as it does not enjoy freer access to markets and new technologies.

Currently the Treaty of Peace and Friendship (1904) allows Bolivia to use Chilean ports, but Bolivia has long argued that Chile is unnecessarily restrictive even though the ports of Antofagasta, Arica, and Iquique are important outlets for Bolivian mineral exports to Asia and the United States. In contrast, Bolivian natural gas, the country’s largest export, moves via pipeline from gas fields in Tarija to Argentina and Brazil, but not to Chile.

Export of gas through Chile is a controversial issue in Bolivia. Widespread social protest forced Bolivian President Gonzalo Sanchez de Lozada from office in October 2003 after he announced plans to export gas to the United States through Chilean ports. His ouster helped pave the way for the election of Evo Morales to the presidency in 2006. In 2004, a referendum supported by Morales banned the sale of gas to Chile until the latter granted Bolivia sovereign access to the sea.

Bolivia has the second-largest gas reserves in Latin America, and its energy sector is vital to the country’s economy. With Argentina and Brazil developing their own gas reserves, the future of Bolivia’s gas industry could well be tied to Chile. Chile also would benefit economically from a resolution of the dispute, as Chile would gain greater access to Bolivia’s agricultural, gas, and mining sectors and possibly its freshwater resources. Bolivia also has the world’s largest lithium deposits, so both mining and gas could be especially important to the future of both countries.

Why Now?

Politically, Bolivian politicians have used the port issue for decades to generate domestic support. Although President Morales won reelection by a wide margin in 2014, his Movimiento al Socialismo (MAS) has suffered losses in more recent gubernatorial and mayoral elections. Consequently, critics of the decision to take the issue to the ICJ have suggested that the move is a nationalist play to booster the government’s sagging popularity. In a May 2015 interview, Sergio Bitar, the former senator representing Chile’s northern region bordering on Bolivia and Chile, claimed that Morales had “made a major mistake in taking the issue to The Hague.” adding, “Morales may have gained domestic support, but Chile views Bolivia’s actions as adversarial.”(1)

However, there is little empirical evidence to substantiate this point of view. Although Bolivia did not take the case to the ICJ until April 2013, the Morales administration began preparing its case more than two years earlier, when it formed the National Council on Maritime Claims and the Strategic Office on Maritime Claims (DIREMAR, by its Spanish initials). At this time, Morales’ popularity was on the upswing.

The Morales administration has addressed the issue with far greater skill and professionalism than earlier governments who were primarily interested in short-term political gain. President Morales has portrayed the issue as a national cause, beyond ideological differences, and he has sought the counsel and support of former presidents and foreign ministers, among others. Former President M. Eduardo Rodriguez Veltzé (2005-2006) was appointed Agent before the ICJ and former President Carlos Diego Mesa Gisbert (2003-2005) is responsible for sharing the Bolivian case with the international community. Both men have been deeply involved in developing and presenting the Bolivian case. In short, the Bolivian initiative before the ICJ appears to be a serious team effort, and although President Morales stands to gain politically if Bolivia succeeds, the Bolivian initiative does not appear to be designed to further the political goals of a single individual or movement.

Regional Implications

Regionally, the Bolivia-Chile dispute has had a polarizing effect on their respective regional communities, the Bolivarian Alliance of the Peoples of America (Alianza Bolivariana para los Pueblos de Nuestra América-ALBA) and the Pacific Alliance since both parties have sought support from the member states of these regional groupings. Tensions between the two states also has spilled over into other international organizations, like the Organization of American States and the United Nations, with both Bolivia and Chile aggressively seeking international support for their positions.

In addition to its negative impact on regional cooperation and integration, the Bolivia-Chile dispute has hampered Bolivian opportunities to take advantage of changing economic realities in the region. The southern leg of the Initiative for Integration of Regional Infrastructure in South America (IIRSA), a multi-national, $37 billion initiative to support regional integration, effectively bypasses Bolivia, linking Brazil to the Pacific Ocean through several Peruvian ports.

Bolivia also has not been part of recent discussions between Brazil, China, and Peru to build a new railway that will cross South America, linking the Atlantic to the Pacific. Bolivia tried to join the railway discussions, but there is little enthusiasm outside Bolivia for the Morales administration’s proposal to reroute the railway through Bolivia and terminating at the Peruvian port of Ilo. In 1992 and again in 2010, the Peruvian government agreed to lease Bolivia land for a duty-free port and industrial park at Ilo, but the agreement was never ratified and Bolivia has done little to date to develop the port as a conduit for Bolivian trade.

High Stakes for Bolivia

The Morales administration is engaged in a high stakes game that Bolivia cannot afford to lose. An interrelated group of challenges and opportunities came together at the onset of this decade to persuade the Morales administration to do something no other Bolivian government had ever done — take the nation’s quest for a sovereign Pacific port to the International Court of Justice at The Hague.

In preparing its legal case, Bolivia reached out to a wide range of diplomats, politicians, and scholars to build domestic and international support for what could well be its best and last opportunity to achieve this goal. The result is a well-prepared and well-argued case that has a good chance of succeeding.

But Chile remains adamant in denying the claim. Over a year ago, Chilean President Michelle Bachelet invited her four predecessors to La Moneda in a collective show of support for the 1904 treaty.(2) The Chilean government maintained that position throughout the run-up to the opening arguments before the Court in May. Chilean Foreign Minister Heraldo Muñoz, in a speech to the VII Summit of the Americas on 12 April 2015, emphasized: “Chile has no pending issues with Bolivia. They were resolved in 1904 when both countries in the Treaty of Peace and Friendship established their borders in perpetuity.”(3) If the Court declines jurisdiction in the case or rules against Bolivia, Chile will likely see the Court’s decision as a vindication of its position and resist any further discussion of the issue with Bolivia.

The Court is expected to rule sometime this fall on the question of whether or not it has jurisdiction in the case. If it decides that it does, Bolivia and Chile will be invited to return to the Court to present oral arguments on why Bolivia thinks Chile has a legal obligation under Article XXXI of the Pact of Bogotá to negotiate sovereign access to the Pacific. This entire process, if it moves forward, will likely take another 3-5 years.

Ronald Bruce St John has been a student of Andean politics since he first visited Bolivia, Chile, Ecuador, and Peru in 1968 in the course of researching a Ph.D. dissertation on Peruvian foreign policy. His most recent book on the region is Toledo’s Peru: Vision and Reality (University Press of Florida, 2010). He is a contributor to the Americas Program www.cipamericas.org